Submitted by CM Chiba<\/p>\n
INTRODUCTION<\/strong> Human rights are those requirements that allow us fully to develop and use our human qualities of intelligence, conscience and to satisfy our spiritual needs.\u00a0 They are based on humankind\u2019s increasing demand for a life in which the inherent dignity and spirit of each human being will receive respect and protection \u2013 an idea that reaches beyond the comforts and conveniences that science and technology can provide.<\/p>\n Human rights are not a recent invention.\u00a0 The genesis of human rights can be traced back to ancient civilizations of Babylon, China and India and are central to Buddhist, Christian, Confucian, Hindu, Islamic and Jewish teachings, which in turn contributed human rights concepts to the laws of Greek and Roman society.<\/p>\n Human rights, in essence, are concerned with equity and fairness.\u00a0 They recognize our freedom to make choices about our life and develop our potential as human beings.\u00a0 They are about living a life free from fear, harassment and discrimination.<\/p>\n To deny human beings their rights is to set the stage for political and social unrest, as well as wars and hostility between nations and between groups within a nation.\u00a0 Far from being an abstract subject matter for philosophers and lawyers, human rights affect the daily lives of everyone \u2013 woman, man and child.<\/p>\n Global Recognition of Human Rights<\/strong> Outrage at the gross violation of human rights immediately before and during the Second World War was the catalyst that gave birth to both the United Nation\u2019s Charter at San Francisco in 1945 and the United Nation\u2019s Declaration of Human Rights in 1948.\u00a0 The opening words of the UN Charter reaffirmed faith in fundamental human rights and in the dignity and worth of the human person, and reflected the indivisible link between respect for human rights and human survival.<\/p>\n The UN Charter also recognized that conditions of stability and wellbeing were necessary for world peace and thus established as one of the purposes of the UN the promotion for higher standards of living, full employment and conditions of economic and social progress and of universal respect for human rights and fundamental freedoms for all, without distinction as to race, sex, language or religion.\u00a0 In recognition of this interdependence of human rights, social and economic progress and world peace, the UN took upon itself one of its earliest tasks, the establishment in 1947 of a Human Rights Commission, which assumed responsibility for the drafting of an international bill of rights that would set a common standard of achievement for all peoples and for all nations large and small<\/p>\n The Declaration of Human Rights<\/strong> Eighteen years later, the Declaration was given a more precise legal form in the International Covenant on Economic, Social and Cultural Rights<\/em> and the International Covenant on Civil and Political Rights<\/em>.\u00a0 An Optional Protocol to the latter Covenant was also adopted, providing that, in respect of States accepting the Protocol, individual petitions about alleged violations of human rights may be submitted to an international committee of experts \u2013 the Human Rights Committee.\u00a0 Both Covenants and Optional Protocol came into force in 1976 in\u00a0 Canada<\/p>\n Broadly speaking, two kinds of rights are recognized in the Universal Declaration.\u00a0 Firstly, there are the civil and political rights, which gradually evolved over centuries during the long development of democratic society.\u00a0 Secondly, there are economic, social and cultural rights, which started to be recognized more recently when people realized that enjoyment of political and civil rights would be enhanced through the simultaneous enjoyment of certain rights of an economic, social and cultural character.<\/p>\n The UN Assembly gives equal attention to the promotion and protection of both types of human rights, considering that the full realization of civil and political rights is impossible without the enjoyment of economic, social and cultural rights.<\/p>\n The UN Declaration, although now part of the customary law of nations and therefore binding on all states, was not meant to have the force of law when it was adopted by the General Assembly in 1948.\u00a0 But almost immediately it took on a moral and political authority equal to that of any other contemporary international instrument.\u00a0 Since then, it has inspired the adoption of many bilateral and multilateral treaties dealing with rights and freedoms, and, it has been entrenched in national constitutions, like the Canadian Charter of Rights and Freedoms, and applied by international and national tribunals alike.<\/p>\n Canada has ratified key UN human rights instruments:<\/strong><\/p>\n Canada has also agreed to the jurisdiction of the individual complaint mechanisms established by the First Optional Protocol to the ICCPR, CAT and the Optional Protocol to the CEDAW.<\/p>\n In sum, human rights are inherent to all human beings, whatever our nationality, place of residence, sex, national or ethnic origin, colour, religion, language, or any other status.\u00a0 We are all equally entitled to our human rights without discrimination.\u00a0 And, these rights are all interrelated, interdependent and indivisible.<\/p>\n Equal and non-discriminatory<\/strong> The principle applies to everyone in relation to all human rights and freedoms and it prohibits discrimination on the basis of a list of non-exhaustive categories such as sex, race, colour and so on. The principle of non-discrimination is complemented by the principle of equality, as stated in Article 1 of the Universal Declaration of Human Rights:<\/em> \u201cAll human beings are born free and equal in dignity and rights.\u201d<\/p>\n Human Rights and Obligations<\/strong> Universal human rights are often expressed and guaranteed by law, in all forms of treaties, customary law, general principles and other sources of international law.\u00a0 International human rights lay down obligations of Governments to act in certain ways or refrain from certain acts, in order to protect human rights and fundamental freedoms of individuals and groups.<\/p>\n Canada & Human Rights<\/strong> But in 1960, the federal government, under then Prime Minister John Diefenbaker, passed the Canadian Bill of Rights. It was the first comprehensive human rights legislation enacted by Parliament.\u00a0 But this statute was not part of the Constitution. It had no more power than any other law. The Bill spoke of fundamental freedoms, legal rights and equality before the law.\u00a0 But if a law itself was discriminatory, the Bill of Rights was generally not helpful.\u00a0 As well, the Bill only applied to federal, not provincial laws.<\/p>\n Because Canada’s original Constitution was an Act of British Parliament, it could only be changed by Britain. Thus, for many years, Canada’s Prime Ministers had been looking to repatriate or to “bring the constitution home.”<\/p>\n Human Rights Laws and the Canadian Charter of Rights and Freedoms: The Power to Appeal to the Courts when Human Rights are Violated<\/strong> The Parliamentary resolution that sets out the details of our truly Canadian Constitution is important to every citizen, containing as it does many of the long-established provisions that form the foundations of our society and of the laws under which we construct our affairs. \u2026<\/em><\/p>\n Most of the rights and freedoms we are enshrining in the Charter are not totally<\/span> new and different. Indeed, Canadians have tended to take most of them for granted over the years. The difference is that now they will be guaranteed by our Constitution, and people will have the power to appeal to the courts if they feel their constitutional rights have been infringed upon or denied.<\/em><\/p>\n By virtue of the Constitution Act, 1982<\/em>, human rights and fundamental freedoms were given an enhanced legal status through the Canadian Charter of Rights and Freedoms, <\/em>which, as a part of the Constitution, entrenched these rights within the supreme law of the country.\u00a0 Section 52(1) of the Constitution Act, 1982<\/em>, expressly states that “The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.”<\/p>\n Part 1 of the Constitution Act, 1982,<\/em> sets out a Canadian Charter of Rights and Freedoms that establishes for all Canadians protection of certain basic rights and freedoms essential to maintaining our free and democratic society and a united country.\u00a0 Hence, everyone has the following fundamental freedoms (s. 2 Charter):<\/p>\n Section 1 of the Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.<\/p>\n The Charter applies to all governments \u2014 federal, provincial and territorial \u2014 and in addition to our fundamental freedoms, it will provide protection of the following:<\/p>\n Canadians have enjoyed many of these basic rights and freedoms as a matter of practice for many years.\u00a0 Certain rights were set out in the Canadian Bill of Rights, as well as in various provincial laws. However, including them in a Charter of Rights, written into the Constitution, clarifies and strengthens them.<\/p>\n Limitations of the Charter<\/strong> Secondly, in a democratic society, rights cannot be absolute; they must be qualified in order to protect the rights of others. For instance, freedom of speech must be qualified by libel and slander laws.\u00a0 Therefore the rights that the Charter guarantees may be subject to the section 33 “notwithstanding clause”.\u00a0 This means that Parliament or a provincial legislature could pass legislation that conflicts with a specific provision of the Charter in one of those areas.\u00a0 Any such legislation would expire after five years unless specifically renewed. The value of this clause is that it will ensure that legislatures rather than judges have the final say on important matters of public policy. The provision will allow for unforeseen situations to be corrected without the need for constitutional amendment.<\/p>\n Thirdly, section 1 of the Charter provides that all rights and freedoms guaranteed by the Charter are subject to “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”\u00a0 This means that once an infringement of a Charter right has been established, the courts must decide whether the violation can be considered justified.\u00a0 This requires the courts to use a highly discretionary balancing test to weigh the policy interests of the government against the interest of the Charter litigant.\u00a0 A similar balancing requirement exists with respect to human rights legislation that allows for the recognition of a bona fide<\/em> occupational requirement or justification as a defence to an otherwise discriminatory practice. In this case, human rights tribunals must make these determinations on the basis of the evidence before them.<\/p>\n The Significance of s. 15 of the Charter<\/strong> Section 15 of the Charter guarantees the right to equality.\u00a0 Although the Charter came into force in 1982, section 15 did not take effect until 1985.\u00a0 The purpose of this three-year delay was to provide the federal and provincial governments with sufficient time to review, and amend where necessary, their respective bodies of legislation to bring them into line with the section.\u00a0 The delay reflected the view that section 15 would be one of the more intrusive provisions of the Charter; however, it ignored the fact that until cases were actually litigated up to the Supreme Court of Canada there would be no confident opinion on the breadth of the Charter\u2019s equality guarantees.<\/p>\n Although there has still been no definitive pronouncement on the scope of section 15, it is interesting to note that the Supreme Court of Canada has given considerable weight to federal and provincial human rights jurisprudence in its interpretation of discrimination under the Charter (see for example Andrews<\/em> v. Law Society (British Columbia)<\/em>, [1989] 1 S.C.R. 143).<\/p>\n While the list of prohibited grounds of discrimination in section 15 is equivalent to that in most human rights legislation, section 15 also extends to other grounds of discrimination that are similar or analogous to those set out in the section.\u00a0 Under human rights legislation, the grounds listed are intended to be exhaustive.<\/p>\n Other Human Rights Protections in Canada<\/strong> Although there is some diversity among federal, provincial and territorial jurisdictions, the principles and enforcement mechanisms of these human rights laws are essentially the same.\u00a0 Each statute prohibits discrimination on specified grounds, such as race, sex, age, religion, in the context of employment, accommodation and publicly available services. The system of human rights administration is complaint-based in that a complaint of discrimination must be lodged with a human rights tribunal, commission or council either by a person who believes that he or she has been discriminated against or the tribunal itself on the basis of its own investigation. If a complaint is determined to be well-founded, the tribunal generally attempts to mediate or conciliate the difference between the complainant and the respondent.\u00a0 Where mediation or conciliation fails, a tribunal may hear the case and make a binding decision. In addition to their administrative functions, such human rights bodies are also charged with educational and promotional functions in relation to human rights.<\/p>\n Human rights tribunals at the federal or provincial level are independent of their counterpart human rights commissions and their members are appointed by the governor in council or cabinet. Unlike the courts, human rights tribunals are specialized bodies which have broad powers to fashion remedies to address the unique social problems underlying a complaint of discrimination.<\/p>\n The Canadian Human Rights Act<\/em>(CHRA) applies to the federal government and to federally regulated businesses like banks, railways, airlines and telecommunications companies, and governs principally employment and the provision of goods and services in each of those sectors.\u00a0 It covers about 10% of the Canadian workforce.<\/p>\n The rest of the Canadian workforce is covered by the provincial and territorial human rights codes. Thus the vast majority of retail businesses, manufacturing industries and residential accommodations are dealt with by provincial and territorial human rights laws.<\/p>\n The CHRA does not apply to religious, cultural or educational institutions.\u00a0 These are not under federal jurisdiction.\u00a0 As with its provincial counterparts, the CHRA sets out certain fundamental characteristics, or \u201cgrounds\u201d, of discrimination which are against the law.\u00a0 The list includes, for example, race, colour, religion, age, sex, marital status or family status, and disability.\u00a0 The CHRA also sets out the procedures for handling complaints lodged under the CHRA.<\/p>\n There is thus a great deal of overlap between the equality guarantees of section 15 of the Charter and those of federal, provincial and territorial human rights legislation. Decisions rendered by the courts and tribunals in this area to date suggest that these anti-discrimination laws share the same underlying philosophy and have overlapping jurisdiction in many respects; however, certain distinctions must be kept in mind when dealing with individual cases.<\/p>\n The Differences between Human Rights Legislation and the Charter<\/strong> At this point, it is perhaps useful to highlight some of the practical differences between two unique forms of anti-discrimination law in Canada, namely, the provisions of human rights legislation in Canada with the equality rights guarantees of section 15 of the Charter.<\/p>\n Examples<\/span>:<\/p>\n References:<\/strong><\/p>\n <\/p>\n","protected":false},"excerpt":{"rendered":" Submitted by CM Chiba INTRODUCTION Every person has dignity and value.\u00a0 One of the ways that we recognize this fundamental worth is by acknowledging and respecting a person\u2019s human rights. Human rights are those requirements that allow us fully to develop and use our human qualities of intelligence, conscience and to satisfy our spiritual needs.\u00a0 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"parent":8786,"menu_order":0,"comment_status":"closed","ping_status":"closed","template":"","meta":{"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"_links":{"self":[{"href":"https:\/\/najc.ca\/wp-json\/wp\/v2\/pages\/594"}],"collection":[{"href":"https:\/\/najc.ca\/wp-json\/wp\/v2\/pages"}],"about":[{"href":"https:\/\/najc.ca\/wp-json\/wp\/v2\/types\/page"}],"author":[{"embeddable":true,"href":"https:\/\/najc.ca\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/najc.ca\/wp-json\/wp\/v2\/comments?post=594"}],"version-history":[{"count":0,"href":"https:\/\/najc.ca\/wp-json\/wp\/v2\/pages\/594\/revisions"}],"up":[{"embeddable":true,"href":"https:\/\/najc.ca\/wp-json\/wp\/v2\/pages\/8786"}],"wp:attachment":[{"href":"https:\/\/najc.ca\/wp-json\/wp\/v2\/media?parent=594"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
\nEvery person has dignity and value.\u00a0 One of the ways that we recognize this fundamental worth is by acknowledging and respecting a person\u2019s human rights.<\/p>\n
\nThere are a number of basic rights that people from around the world have agreed on, such as the right to life, freedom from torture and other cruel and inhuman treatment, rights to a fair trial, free speech and freedom of religion, rights to health, education and an adequate standard of living.<\/p>\n
\nOn December 10, 1948, the UN General Assembly adopted the final text of the draft entitled the Universal Declaration of Human Rights, which was passed without a dissenting vote, although there were four abstentions.\u00a0 The late Eleanor Roosevelt, the Commission\u2019s first Chair, called the Universal Declaration of Human Rights<\/em> the Magna Carta of humankind and it has since been hailed as the greatest achievement of the United Nations.\u00a0 The late John Humphrey, an eminent Canadian and international law expert, also helped to draft the Declaration and served as the Director of the UN Human Rights Division from 1946 to 1966.<\/p>\n\n
\nNon-discrimination is an overarching principle in international human rights law. The principle is present in all the major human rights treaties and provides the central theme of some of the international human rights conventions such as the International Convention on the Elimination of All Forms of Racial Discrimination<\/em> and the Convention on the Elimination of All Forms of Discrimination against Women<\/em>.<\/p>\n
\nHuman rights entail both rights and obligations.\u00a0 Countries, such as Canada, assume obligations and duties under international law to respect, to protect and to fulfill human rights. The obligation to respect means that States must refrain from interfering with or curtailing the enjoyment of human rights. The obligation to protect requires countries to protect individuals and groups against human rights abuses. The obligation to fulfill means that countries must take positive action to facilitate the enjoyment of basic human rights. At the individual level, while we are entitled to our human rights, we should also respect the human rights of others.<\/p>\n
\nCanada’s original Constitution, the British North America Act (the BNA Act), was passed in 1867 by British Parliament. This Act, also known as the Constitution Act, 1867, founded Canada as a nation. It made elected governments the highest political and legal institutions in the country. The Constitution distributed power between the federal and provincial governments. Unlike the United States Constitution, Canada’s BNA Act did not have a “Bill of Rights” that governments had to follow.<\/p>\n
\nIn 1981, Canadians witnessed and participated in a truly historical event. Canada had reached at last the goal of that long journey to full, sovereign independence from Britain that began with Confederation in 1867.\u00a0 Along with sovereign independence, something else took place that is of equal importance; namely, the enshrining of certain basic human rights and freedoms in our Constitution.\u00a0 The significance of this should not be overlooked.\u00a0 The late Pierre Elliott Trudeau, the Prime Minister who succeeded in repatriating the Constitution, stated it thus:<\/p>\n\n
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\nThere are, however, certain limitations on the reach of Charter guarantees.\u00a0 First, the Charter applies only to relations between governments and the public; section 32 of the Charter states that the Charter applies to Parliament and to provincial legislatures as well as to the federal and provincial governments.\u00a0 Thus, the Charter does not generally apply to private actions of individuals or corporations, though it may do so, for example, through judicial extension of its guarantees to human rights codes.<\/p>\n
\nSection 15(1) provides as follows:\u00a0 \u201cEvery individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability<\/em>.\u201d<\/p>\n
\nAs previously mentioned, at the federal, provincial and territorial levels, there are also human rights codes, the Ontario Human Rights Code, and human rights bodies, such the Canadian Human Rights Commission, which play a key role in furthering equality rights in Canada.<\/p>\n
\n<\/strong>As a result of a federal system of government with a division of legislative powers, human rights statutes have been enacted in Canada at the federal, provincial and territorial levels.\u00a0 As well, by virtue of the constitutional amendments in 1982, human rights guarantees were entrenched in the Constitution of Canada by means of the Canadian Charter of Rights and Freedoms<\/em>.\u00a0 The creation of the Charter did not, however, eliminate the need for statutory human rights codes or diminish their importance.\u00a0 On the contrary, it actually served to elevate human rights laws to the status of quasi-constitutional legislation.<\/p>\n\n
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